Linmark Associates, Inc. v. The Township of Willingboro Brief Amicus Curiae

    I n t h e

(Eourt of %  IttM  Btatez
October Term, 1975 

No. 76-357

L inmark A ssociates, Inc., et al.,
Petitioners,

vs.

T he T ownship of W illingboro, et al.,

Respondents.

o n  w r i t  o e  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s

COURT OE APPEALS EOR THE THIRD CIRCUIT

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack Greenberg 
Charles Stephen R alston 
Melvyn R. L eventhal 
B ill L ann L ee 
L inda S. Greene 
B eth J. L ief

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Amicus Curiae



TABLE OF CONTENTS

Interest of Amicus Curiae ............................................... 1

A rgument

Introduction .............................................................................  2

Summary of Argum ent......................................................  3

I. The Willingboro Ordinance Enforces the Fair
Housing Guarantee of the Thirteenth Amend­
ment and the Equal Protection Clause of the 
Fourteenth Amendment ........................................ 3

A. The National Fair Housing Guarantee .... 3

B. The Willingboro Ordinance .......................... 7

II. The Willingboro Ordinance Is an Appropriate
Means of Thwarting Panic Selling to Pre­
serve an Integrated Community And Does 
Not Offend the First Amendment ...................  10

A. The Ban on “ For Sale” and “Sold” Signs
Is Closely Belated to Illegal Discrimina­
tion in Housing ...........................................     12

B. The Proliferation of “For Sale” and
“ Sold” Signs in a B,acially Tense Com­
munity Broadcasts a Threatening and 
Deceptive Message ....................................... 14

C. “ For Sale” and “ Sold” Signs Are Thrust
Upon a Captive Audience .............................  16

Conclusion ......................................................     18

A p p e n d i x  A—

State and Local Anti-Panic Selling Provisions .... la

PAGE



11

T able oe A uthorities

Cases: page

Barrick Realty, Inc. v. City of Gary, Indiana, 354 
F. Supp. 126 (N.D. Ind.), aff’d 491 F.2d 161 (7th
Cir. 1974) ..........................................................................5,14

Bigelow y . Commonwealth of Virginia, 421 U.S.
809 .................................................................................. 10,11,12
Brandenburg v. Ohio, 395 U.S. 444 (1969) ....................  11
Brown v. State Realty Co., 304 P. Supp. 1236 (N.D.

Ga. 1969) ..........................................................................  13

Charles of the Ritz Distribs. Corp. v. PTC, 143 F.2d
676 (2d Cir. 1944) ..........................................................  15

Cohen v. California, 403 U.S. 15 (1969) .............................  18

Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948) 14
E. P. Drew & Co. v. PTC, 235 F.2d 735 (2d Cir. 1956) 14

Erznoznik v. City of Jacksonville, 422 U.S. 205
(1976) ..............................................................................16,18

Head v. Board of Examiners, 374 U.S. 424 (1960) .....  14

Jacob Siegel Co. v. PTC, 327 U.S. 608 (1946) ...........  14
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .... 6

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) 17
Levitt and Sons, Inc. v. Division Against Discrimina­

tion in State Department of Education, 31 N.J.
514, 158 A.2d 177, appeal dism., 363 U.S. 418 (1960) 7

Linmark Associates, Inc. v. Township of Willingboro,
535 F.2d 786 (3rd Cir. 1976) ...................................... 1, 7, 8

Markham Advertising Co. v. State, 73 Wash. 2d 405,
439 P.2d 248, appeal dism., 393 U.S. 316 (1969) .....  17

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .......  15



I l l

National Commission on Egg Nutrition v. FTC, 517 
F.2d 485 (7th Cir. 1975) ..............................................  14

Packer Corp. v. Utah, 285 U.S. 105 (1932) ................... 17
Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 (1973) .......... .....10,11,13
Public Utilities Comm’n v. Pollack, 343 U.S. 451 (1952) 17

Railway Mail Assoc, y. Corsi, 326 U.S. 88 (1945) .......  9
Rockville Reminder, Inc. v. United States Postal Ser­

vice, 480 F.2d 4 (4th Cir. 1973) ................................... 12
Rosenfeld v. New Jersey, 408 U.S. 901 (1972) ...........  18

Trafficante v. Metropolitan Life Insurance Co., 409 
U.S. 205 (1972) ................................................................5,14

United States v. Bob Lawrence Realty, Inc., 474 F.2d
115 (5th Cir.), cert, denied, 414 U.S. 826 (1973) .....12,14

United States v. Hunter, 459 F.2d 205 (4th Cir.), cert.
denied, 409 U.S. 934 (1972) ................... .................. 12,13

United States v. Mintzes, 304 F. Supp. 1305 (D. Md.
1969) .................................................................................. 14

United States v. Mitchell, 335 F. Supp. 1004 (N.D.
Ga. 1971) ..........................................................................4,14

United States v. Re, 336 F.2d 306 (2d Cir), cert, denied,
370 U.S. 904 (1964) ......................................................  15

Village of Arlington Heights v. Metropolitan Housing 
Development Corp., No. 75-616 (January 11, 1977) .... 7

Virginia State Board of Pharmacy v. Virginia Citizen’s 
Consumer Council, 425 U.S. 748 (1976) .....................10,14

Williamson v. Lee Optical, 348 U.S. 483 (1958) ...........  14

Young v. American Mini Theatres, — — U .S .------ , 49
L.Ed. 310 (1976) .......................................................... 11,14

Zuch v. Hussey, 394 F. Supp. 1028 (E.D. Mich. 1975) .... 14

PAGE



1Y

Constitutional Provisions and Statutes:

First Amendment .......................................... 3, 9,10,11,12,13

Fourteenth Amendment ....................................................  3, 9

Thirteenth Amendment......................................................  3, 9

23 U.S.C. § 131 ....................................................................  17

42 U.S.C. § 3601 ..................................................................  1

42 U.S.C. § 3604 .................................................................. 12

42 U.S.C. § 3604(c) ............................................................  13

42 U.S.C. § 3604(e) ...............................................  5,12

42 U.S.C. § 3609 ..................................................................  6

42 U.S.C. § 3610 ..................................................................  6

42 U.S.C. § 3612 ..................................................................  6

42 U.S.C. § 3615 ..................................................................  6

42 U.S.C. § 3616 ..................................................................  6

Other Authorities:

112 Cong. Eec. (1966) ......................................................  5,7

114 Cong. Eec. (1968) ......................................................  5,6

Hearings on S.13-58, S.2114 and S.2280 Before the 
Subcomm. on Housing and Urban Affairs of the 
S.Comm. on Banking and Currency, 90th Cong. 1st 
Sess. (1967) ......................................................................  5

Note, Developments in the Law—Deceptive Advertis­
ing, 80 Harv. L. E ev. 1005 (1970) ..............................  15

U.S. Commission on Civil Eights, Twenty Years After 
Brown: Equal Opportunity in Housing (1975) .......  1

U.S. Commission on Civil Eights, Equal Opportunity 
in Suburbia (1974) ..........................................................  2

PAGE



I n  t h e

(Court of tljr IniM  States
October Term, 1975 

No. 76-357

L inmark A ssociates, I nc., et al.,
Petitioners,

vs.

T he T ownship of W illingboro, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR TH E THIRD CIRCUIT

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Amicus Curiae*

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the 
laws of the State of New York in 1939. It was formed to 
assist black persons to secure their constitutional rights 
by the prosecution of lawsuits. The Legal Defense Fund 
receives many requests for assistance in the enforcement 
of fair housing laws, and seeks to advance the national 
policy of “ fair housing through the United States,” 42 
U.S.C. § 3601, in both federal and state courts.

Today integrated communities like Willingboro are beset 
with tensions and threat of instability created by “ block­

* Letters of consent to the filing of this brief from counsel for 
the petitioners and the respondents have been filed with the Clerk 
of the Court.



2

busting” which lead to racial segregation, damaging en­
tire communities. The fair housing laws seek to prevent 
the harm done by blockbusting and sanction efforts by all 
levels of government to this end. Willingboro’s effort to 
preserve integration and stability is an instance of such 
enforcement at the local level. Indeed, early attention by 
local authorities may be the best and perhaps only effec­
tive remedy for blockbusting; it may be impossible to re­
verse the processes of panic and resegregation once under­
way.

ARGUMENT

Introduction

Although amicus’ position in this case is that the ordi­
nance prohibiting for sale signs is a valid enactment, it 
must be emphasized that such may not always be the case. 
Under other circumstances such an ordinance may result in 
barring blacks from equal access to housing. For example, 
in an all-white community where realtors control the hous­
ing market, the only way prospective black purchasers 
may be able to find houses is to tour the area looking for 
“ for sale” signs.

In short, no absolute rule that these ordinances either 
are or are not valid is possible. In each case, the courts 
must carefully weigh a variety of factors, including the 
state of integration of the community, the accessibility of 
housing through realtors or newspaper advertising, and 
the history of the enactment of the ordinance in question. 
As we shall show below, the proper result in this case is 
to uphold the ordinance. In doing so, we urge that the 
Court .should provide guidance to the lower courts to assist 
them in striking a proper balance between two purposes 
of the Fair Housing Act; ensuring full access to housing, 
and preventing the destructive effects of blockbusting.



3

Summary of Argument

The standard for determining the constitutionality of 
the Willingboro ordinance banning “ for sale” and “ sold” 
signs on residential property must accommodate the State’s 
obligation to protect the right of black citizens to equal 
access to housing and the right of all Americans to open 
integrated communities, guaranteed by the Thirteenth and 
Fourteenth Amendments. The proper inquiry is (1) does 
the ordinance have a segregative effect; and (2) was the 
ordinance enacted to prevent the destructive segregating 
effects of fear and panic selling rather than to exclude 
minorities from residing in the community; the appeals 
court determination that the Willingboro ordinance was 
adopted pursuant to the town’s obligations under the Thir­
teenth Amendment and Equal Protection Clause of the 
Fourteenth Amendment is clearly correct. The ordinance 
neither had the effect of nor was it intended to create 
racial segregation. On the contrary, it preserves racial 
integration in Willingboro. From this perspective, the 
ordinance’s restriction of commercial speech does not vio­
late the First Amendment.

I.
The Willingboro Ordinance Enforces the Fair Hous­

ing Guarantee of the Thirteenth Amendment and the 
Equal Protection Clause of the Fourteenth Amendment.

A. The National Fair Housing Guarantee.

The Commission on Civil Rights’ most recent report on 
fair housing finds that “ [s]evere residential segregation 
and isolation between races and ethnic groups is a marked 
feature of virtually every metropolitan area in which 
minorities reside,” 1 and that when blacks move to suburban

1 U.S. Commission on Civil Rights, Twenty Years After Brown: 
Equal Opportunity in Housing 119 (1975). See also Linmark As­



4

communities they frequently find themselves in black en­
claves which border central city neighborhoods.2 “ [R]eal 
estate agents have abetted th[e] process of racial change 
by playing on white fears and prejudices and inducing panic 
selling by whites . . .  in countless neighborhoods across the 
Nation.”  3

“First, a sense of panic and urgency immediately grips 
the neighborhood and rumors circulate and recirculate 
about the extent of the intrusion (real or fancied), the 
effect on property values and the quality of education. 
Second, there are sales and rumors of sales, some true, 
some false. Third, the frenzied listing and sale of 
houses attracts real estate agents like flies to a leaking 
jug of honey. Fourth, even those owners who do not 
sell are sorely tempted as their neighbors move away, 
and hence those who remain are peculiarly vulnerable. 
Fifth, the names of successful agents are exchanged 
and recommended between homeowners and frequently 
the agents are called by the owners themselves, if not 
to make a listing then at least to get an up-to-date 
appraisal. Constant solicitation of listings goes on by 
all agents either by house-to-house calls and/or by 
mail and/or by telephone, to the point where owners 
and residents are driven almost to distraction.” 4

The real estate industry’s use of “ for sale” and “ sold” 
signs is a critical ingredient in “panic selling” for such 
signs tend “ no less than overt blockbusting practices, to 
undermine any hope of . . . [racial] stability. Once this

sociates, Inc. v. Township of Willingboro, 535 F. 2d 786, 789 n. 1; 
see also U.S. Commission on Civil Rights, Equal Opportunity in 
Suburbia 64 (1974).

2 Id.
3 Id. at 9.
4 United States v. Mitchell, 335 F. Supp. 1004, 1006 (N.D. Ga. 

1971).



5

hope is lost and complete racial transformation appears 
inevitable, even those desiring to remain are virtually 
forced to sell.”  BarricTc Realty, Inc. v. City of Gary, Indi­
ana, 354 F. Supp. 126, 135 (N.D. Ind.), aff’d, 491 F. 2d 161 
(7th Cir. 1974). Ordinances banning such signs “ remove a 
significant source of panic selling pressure from those who 
wish to remain in the . . . neighborhood.” 354 F. Supp. 
at 135.5

Congress has clearly aligned the Nation with the resi­
dents of Willingboro in §804(e) of Title V III of the Civil 
Eights Act of 1968, 42 U.S.C. §3604(e), which makes it 
unlawful “ [f]or  profit, to induce or attempt to induce any 
person to sell or rent any dwelling by representations 
regarding the entry or prospective entry into the neighbor­
hood of a person or persons of a particular race, color, 
religion or national origin.” Legislative history indicates 
that Congress used the strongest language to condemn the 
effects of blockbusting in creating “new ghettos” ,6 and 
recognized that the community suffered substantial injury 
from racially discriminatory housing practices, Trafficante 
v. Metropolitan Life Insurance Co., 409 U.S. 205, 210 
(1972).

Although Title V III is “ a detailed housing law, appli­
cable to a broad range of discriminatory practices and

5 See infra.
6 The antiblockbusting provision was introduced by Bepresenta- 

tive Bingham as an amendment to Title IY  of the Civil Bights Act 
of 1966, the predecessor to Title VIII which passed the House but 
not the Senate, 112 Cong. Bee. 18177 (1966), in order to overcome 
the “ two evil results” of realtor windfall profits and “creating in 
the end a new black ghetto.” Blockbusting was described as “one of 
the most evil situations accompanying and causing and flowing 
from segregation in housing” , id. at 18178. Senator Mondale, the 
foremost proponent of Title V lII, compared blockbusting to “pro­
fit [ing] by booking young people with drug addiction” and “steal­
ing wheelchairs from crippled children; it is as bad as you can 
think of . . .  ” Hearings on S. 1358, S. 2114 and S. 2280 Before the 
Subcomm. on Housing and Urban Affairs of the S. Comm, on 
Banking and Currency, 90th Cong. 1st Sess. at 118 (1967). See 
also 114 Cong. Bee. 2273, 2275, 2692-2696, 2704, 2992 (1968).



6

enforceable by a complete arsenal of federal authority,” 7 
the coordinate enforcement role of state and local author­
ities is recognized and made part of the statute’s enforce­
ment scheme. § 815 of Title VIII, 42 U.S.C. § 3615, ex­
pressly provides that Title V III is not meant to preempt 
any state or local antidiscrimination measure “ that grants, 
guarantees, or protects the same rights as are granted by 
this Title.” Although “ the authority and responsibility for 
administering this Act shall be in the Secretary of Housing 
and Urban Development,” the Secretary “ shall consult with 
State and Local officials . . . .” ;8 and Title V III carefully 
integrates state and local enforcement authority into the 
very “ arsenal of federal authority” in the enforcement 
provisions of Title V III.9

Senator Mondale emphasized the need to supplement the 
increasing number of state and local government fair hous­
ing laws in introducing the Mondale-Brooke bill: “ These 
scattered and local developments, far from absolving us 
from action, make it even more important than before that 
Congress enact a national fair housing law that will place 
all States and all localities upon an equal footing.” 10 With 
respect to the antiblockbusting provision in § 804(e), 42 
U.S.C. § 3604(e), legislative history is specific that anti­
blockbusting measures of state and local authorities, in­

7 Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417 (1968).
8 § 809, 42 U.S.C. § 3609; see also § 816, 42 U.S.C. § 3616.
9 See §§ 810 and 812, 42 U.S.C. §§ 3610 and 3612.
10 114 Cong. Rec. 2277; compare 2273, 2274, 2992 and 9554. 

Senator Mondale echoed Attorney General Clark’s comments in 
hearing.

“ This legislation . . . would not in any way interfere with State 
and local governments in their efforts to enforce their laws. 
On the contrary, it would be designed to encourage and vital­
ize those efforts. And it would provide for the Secretary of 
Housing and Urban Development to encourage and support 
state and local governments in the enforcement of their laws 
and in the conduct of their affairs under those laws.”

Hearings on S. 1358, S. 2114 and S. 2280 Before the Subcomm. 
on Housing and Urban Affairs of the S. Comm, on Banking and 
Currency, supra, p. 15.



7

eluding, “provisions . . . which go into the same thing” 
are permitted and encouraged under the act.11

B. The Willingboro Ordinance.

Willingboro Ordinance No. 5-1974 is a legislative mea­
sure consistent with Title VIII. The history of the town, 
the sequence of events preceding enactment of the ordi­
nance, and its impact compel the conclusion that the pur­
pose of the measure was to control incitement of I’acial 
fears and panic selling induced by realtors’ use of “ for 
sale” and “ sold” signs. See Village of Arlington Heights 
v. Metropolitan Housing Development Corp., No. 75-616 
(January 11, 1977), slip op. at 11-15.

After racial exclusion by the developer of Willingboro 
was enjoined,12 the town committed itself to becoming 
racially integrated.13 However, shortly before the passage 
of the ordinance, residents became increasingly preoccu­
pied with racial problems and fears of resegregation. Con­
cern was expressed that local newspapers had published 
articles about racial tensions, blockbusting, and an influx 
of blacks into the community.14 *

The Willingboro Human Relations Commission recom­
mended the ordinance because investigations demon­
strated that realtors’ use of “ for sale’’ and “ sold” signs 
had induced widespread fear and panic selling.16 Those 
recommendations were endorsed by organizations devoted

11112 Cong. Rec. 18177 (colloquy between Rep. Bingham and 
Rep. Colmer). See Appendix A, State and Local Anti-Panic Sell­
ing Provisions.

12 Levitt and Sons, Inc. v. Division Against Discrimination in 
State Department of Education, 31 N.J. 514, 158 A. 2d 177, appeal 
dim., 363 TJ.S. 418 (1960).

13 See discussion at 535 F. 2d 786, 789.
14 Joint Appendix, pp. 51a, 96a.
16 Joint Appendix, pp. 233a, 234a-336a (Gladfelter); 239a-240a,

244a (Porter); 247a-248a, 251a (Lyght).



8

to civil rights, including the N.A.A.C.P.16 At public hear­
ings held by the Township Council to consider the ordi­
nance, “ [c]omplaints were stated regarding phone calls, 
letters and house-to-house solicitations by realtors inquir­
ing whether the home owner wishes to sell;17 about panic 
selling;18 about ‘sold’ signs remaining up for six weeks 
in violation of an ordinance requiring their removal in five 
days (in response to which Council members cited the great 
difficulty of enforcement) ;19 about the ‘forest’ of signs, 
which created the impression ‘that there was something 
wrong with the community’,20 21 and consequent departure 
of persons who might otherwise have remained.” 21 535 
F.2d at 791.

After two years of investigation, the Township Council 
enacted the ordinance. We submit that the record is crucial 
to resolution of this case and there is no evidence in the 
record to support the claim that the impact of the ordinance 
has been to discriminate against black home purchasers. 
And, of course, segregation is not its purpose. Indeed, the 
purpose was the opposite—maintenance of integration. 
Real estate agents testified at trial that sales had not 
diminished.22 Willingboro public school enrollment statis­
tics, which the court may judicially notice, show that the 
absolute number of black students has continued to increase

18 535 F. 2d at 793-794, n. 6. At the hearing, community resi­
dents were proponents of the ordinance while the real estate indus­
try was its major opponent.

17 See, e.g., Joint Appendix, pp. 46a, lOOa-lOla.
18 See, e.g., Joint Appendix, p. 102a; see also pp. 158a, 162a-163a.
19 See, e.g., Joint Appendix, pp. 34a-35a, 39a, 85a, 89a, 90a, 93a- 

94a, 109a.
20 See, e.g., Joint Appendix, pp. 44a-45a, 63a-64a, 71a, 90a, 92a, 

93a, 105a, 113a-114a.
21 See, e.g., Joint Appendix, p. 102a. Blockbusting was also 

raised. See id. at 96a, I l i a ; see also 158a,
22 Joint Appendix, p. 163a.



9

after enactment of the ordinance, both systemwide and in 
almost every school.23

That the ordinance was enacted to prevent panic selling 
does not mean that an identical ordinance might not be 
passed elsewhere in order to exclude blacks or to have that 
effect. However, Willingboro is not a community which 
has no black residents, the ordinance was not passed in 
response to the entry of the first black family or families 
into the community, nor has the impact been to exclude 
black homeseekers from living in the township.24 No facts 
which would support a finding of unconstitutionality under 
the Thirteenth Amendment and the Equal Protection 
Clause of the Fourteenth Amendment are present here. 
In the absence of such a finding, “a State may choose to 
put its authority behind one of the cherished aims of 
American feeling by forbidding indulgence in racial . . . 
prejudice to another’s hurt.” 25 To use the First and Four­
teenth Amendments “ as a sword against such State power 
would surely stultify”  2S the national open housing policy.

23 Brief For Respondent, Exhibit A.
24 Compare discussion concerning Medford Lakes at 535 F. 2d 

at 803 n. 27, 811.
25 Railway Mail Assoc, v. Corsi, 326 U.S. 88, 98 (1945) (Mr. 

Justice Frankfurter concurring).
26 Id.



10

II.

The Willingiboro Ordinance Is an Appropriate Means 
of Thwarting Panic Selling to Preserve an Integrated 
Community and Does Not Offend the First Amend­
ment.

Unlike political and ideological dialogue, the posting of 
“ for sale” signs is commercial product advertising which 
does “no more than propose a commercial transaction,” 
Pittsburgh Press Co. v. Pittsburgh Commission on Human 
Relations, 413 U.S. 376, 385 (1973).27 This Court has con­
sistently recognized that significant distinctions between 
commercial advertising and other types of speech support 
the need for differences in the degree and type of permis­
sible regulation in each category. Virginia State Board of 
Pharmacy v. Virginia Citizen’s Consumer Council, 425 U.S. 
748 (1976); Bigelow v. Commonwealth of Virginia, 421 U.S. 
809 (1975).

Moreover, unlike the statute in Pittsburgh Press, the 
Willingboro ordinance does not ban all advertisement of 
homes which are for sale, but rather allows such advertis­
ing by all means other than the posting of “ for sale” signs 
on residential property. The fear expressed in Virginia 
Board of Pharmacy that a commercial message will not 
reach consumers is substantially weakened where the reg­
ulation only encompasses one of many channels of com­
munication.28 Indeed, at the trial which occurred nine

27 The advertising here is distinguishable from the advertisement 
in Bigelow v. Virginia, supra, which announced the availability of 
legal abortions in New York and “contained factual material of 
clear ‘public interest’ ” . Id. at 822, or from other types of commer­
cial advertisements which contain public interest elements. See 
Virginia Pharmacy Board v. Virginia Citizens’ Consumer Council, 
supra, 425 U.S. at 760-761 and cases cited therein.

28 Prior to the enactment of the ordinance, the real estate indus­
try advertised by word of mouth and by newspaper advertisements. 
The majority of its business came from these sources, not from 
signs. Joint Appendix, pp. 33a, 36a.



11

months after the ordinance was passed and “ for sale” signs 
had disappeared from Willingboro, witnesses testified 
that sales of homes had not diminished. Thus, as the Court 
noted in Young v. American Mini Theatres, “ [vjiewed as 
an entirety, the market for the commodity is essentially 
unrestricted,” ------U .S .--------, 49 L.Ed. 310, 321 (1976).

The analysis of the protection accorded commercial 
speech under the First Amendment has involved a careful 
balancing of the interests in each case. The interest of a 
community in protecting a seldom-achieved racial integra­
tion and in preventing the destructive segregating effects 
of a panic selling and blockbusting clearly outweighs the 
desire of real estate brokers to advertise by one particular 
method.29

29 Suggestions in the briefs of petitioners and the American Civil 
Liberties Union as amicus curiae that the proper standard of re­
view is the “clear and present danger” test or a “substantial govern­
mental interest” test find no support in the Court’s opinions.

The clear and present danger test, most recently refined in 
Brandenburg v. Ohio, 395 U.S. 444 (1969), was formulated in 
cases arising under criminal syndicalism statutes which sought to 
punish on the basis of an individual’s political beliefs. Because the 
freedom to possess such beliefs forms the core of First Amendment 
values, the principle emerged that “ [t]he constitutional guarantees 
of free speech and free press do not permit a State to forbid or 
proscribe advocacy of the use of force or of law violation except 
where such advocacy is directed to inciting or producing imminent 
lawless action and is likely to incite such action.” Id. at 447.

Nor is the rigid application of a “substantial governmental in­
terest” test warranted. The touchstone of this Court’s opinions in 
the commercial speech area has been flexibility; the varying types 
of commercial speech necessitate a separate consideration of all 
issues in each case. For example, as the Court noted, some adver­
tisements contain “factual material of clear ‘public interest’.” 
Compare Bigelow v. Virginia, supra, 421 U.S. at 822 with Pitts­
burgh Press Co. v. Pittsburgh Commission on Hum. Bel., supra. 
The burden of justifying regulation of the former may well have 
to be greater than the burden of justifying restriction on the latter, 
since “ [t]he question whether speech is, or is not, protected by the 
First Amendment often depends on the context of the speech” and 
“ [e]ven within the area of protected speech, a difference in context 
may require a different governmental response.” Young v. Ameri­
can Mini Theatres, supra, 49 L. Ed. 2d at 323, 324.



12

A. The Ban on “ For Sale” and “ Sold”  Signs Is Closely 
Related to Illegal Discrimination in Housing.

The question of “ the precise extent to which the First 
Amendment permits regulation of advertising that is re­
lated to activities the State may legitimately regulate or 
even prohibit” was explicitly left open in Bigelow v. Vir­
ginia, supra, 421 U.S. at 825. This Court observed, id. at 
825, n. 10:

“We have no occasion, therefore, to comment on deci­
sions of lower courts concerning regulation of adver­
tising in readily distinguishable fact situations. Wholly 
apart from the respective rationales that may have 
been developed by the courts in those cases, their re­
sults are not inconsistent with our holding here. In 
those cases there usually existed a clear relationship 
between the advertising in question and an activity 
that the government was legitimately regulating. See, 
e.g., United States v. Bob Lawrence Realty, Inc., 474 
F.2d 115, 121 (CA5), cert, denied, 414 U.S. 826, 38 
L. Ed. 2d 59, 94 S. Ct. 131 (1973). Rockville Reminder, 
Inc. v. United States Postal Service, 480 F. 2d 4 (CA2 
1973); United States v. Hunter, 459 F. 2d 205 (CA4), 
cert, denied, 409 U.S. 934, 34 L. Ed. 2d 189, 93 S. Ct. 
235 (1972).”

The ban on “ for sale” signs is not only related to, but 
specifically directed against, panic selling prohibited by the 
Fair Housing Title of the Civil Rights Act of 1968, 42 
U.S.C. § 3604. United States v. Bob Lawrence Realty, 
supra, one of the cases cited in Bigelow, upheld the con­
stitutionality of § 3604(e) of the Fair Housing Title, which 
forbids blockbusting.

“ Congress was aware that as laudable and necessary 
as the profit motive might be for our socio-economic 
system, it must on occasion yield to more humane and



13

compassionate mores which are inherent in the system 
itself, and necessary for survival.” 30

The court in another case cited in Bigelow rejected a First 
Amendment challenge to the Fair Housing- Title’s pro­
scription against discriminatory advertising, § 804(c), 42 
U.S.C. § 3604(c). United States v. Hunter, supra.

Because of their success at manipulating racial fears, 
blockbusting practices “ . . . constitute a fundamental 
element in the perpetration of segregated neighborhoods, 
racial ghettos and the concomitant evils which have been 
universally recognized to emanate therefrom.” 31 The wide­
spread posting of “for sale” signs is as intimately related 
as any other tactic of blockbusting to aggravation of racial 
hysteria, and setting in motion panic selling and resegrega­
tion in communities.

In Pittsburgh Press Co. v. Pittsburgh Commission on 
Human Relations, supra, a prohibition on publishing em­
ployment advertisements in sex-designated columns was 
challenged on First Amendment grounds. In upholding the 
prohibition, this Court stated:

“Any First Amendment interest which might be served 
by advertising an ordinary commercial proposal and 
which might arguably outweigh the governmental in­
terest supporting the regulation is altogether absent 
when the commercial activity itself is illegal and the 
restriction on advertising is incidental to a valid limi­
tation on economic activity.” 32

The justification for the regulation lay not in the fact that 
the advertising explicitly violated a federal or local law,

30 Id., 474 F. 2d at 119.
31 Brown v. State Realty Co., 304 F. Supp. 1236, 1240 (N.D. Ga. 

1969).
32 413 TJ.S. at 389.



14

but rather it “ signaled that the advertisers were likely to 
show an illegal sex preference in their hiring decisions.” 
Id. So, too, the prevalence of “ for sale” signs signals the 
incitement of racial panic inimical to the existence of “ truly 
integrated and balanced living patterns,” Trafficante v. 
Metropolitan Life Insurance Co., 409 U.S. 205, 211 (1972) 
which the Fair Housing Title seeks to achieve.83

B. The Proliferation of “ For Sale” and “ Sold”  Signs 
in a Racially Tense Community Broadcasts a 
Threatening and Deceptive Message.

In Virginia Pharmacy Bd. v. Virginia Citizen’s Consumer 
Council, supra, 425 U.S. at 771, this Court stated: “We see 
no obstacle to a state dealing effectively” with the problem 
of “commercial speech [which] is not probably false, or 
even wholly false, but only deceptive or misleading.” Such 
regulation is not uncommon. Where the potential for de­
ception exists, this Court has consistently sustained pro­
hibitions on advertising by certain professions. Head v. 
Board of Examiners, 374 U.S. 424 (1960) (optometrists); 
Williamson v. Lee Optical, 348 TJ.S. 483 (1958) (eyeglass 
fram es); see Virginia Pharmacy Bd. v. Virginia Citizen’s 
Consumer Council, supra, 425 U.S. at 773, n. 25. The 
power of the Federal Trade Commission to prohibit mis­
leading as well as false statements in labeling and ad­
vertising “has long been recognized,” Young v. American 
Mini Theatres, supra, 49 L. Ed. 2d at 328, n. 31,* 34 and the 
authority of the Securities and Exchange Commission to 
regulate information disclosed in stock solicitations is

83 See, e.g., Barrick Realty, Inc. v. City of Gary, Indiana, supra, 
354 F. Supp. at 135; United States v. Bob Lawrence Realty, supra; 
United States v. Mitchell, 335 P. Supp. 1004, 1006 (N.D. Ga. 1971); 
United States v. Mintzes, 304 F. Supp. 1305 (D. Md. 1969); Zuch 
v. Hussey, 394 P. Supp. 1028, 1033, n. 7 (E.D. Mich. 1975).

34 See, e.g., Jacob Siegel Co. v. PTC, 327 U.S. 608 (1946); Don­
aldson v. Read Magazine, Inc., 333 U.S. 178 189 (1948); National 
Commission on Egg Nutrition v. PTC, 517 P. 2d 485 (7th Cir. 
1975) ; E. F. Drew & Co. v. FTC, 235 P. 2d 735, 740 (2d Cir. 1956).



15

settled, United States v. Re, 336 F. 2d 306 (2d Cir.), cert, 
denied, 370 TJ.S. 904 (1964). And while there is a chal­
lenge to laws barring advertising by, for example, law­
yers, there seems to be no serious claim that such advertis­
ing may be conducted totally unrestrained as to time, place 
and manner.

“ For sale” signs are obviously not literally false ad­
vertising when placed in front of houses currently on the 
market.35 However, regulation is permissible to prevent 
the more subtle but often graver evils caused by messages 
which, although literally true, convey underlying illegal 
or antisocial meanings. For example, to determine whether 
an advertisement is deceptive or misleading and subject 
to regulation or prohibition, the FTC employs a standard 
that is based not on proof of actual falsehood but on the 
“ capacity to deceive” the typical audience which will re­
ceive the message. See, e.g., Charles of the Ritz Distribs. 
Corp. v. FTC, 143 F.2d 676, 680 (2d Cir. 1944); Note, De­
velopment in the Law—Deceptive Advertising, 80 Habv. L. 
R ev., 1005, 1040, et seq. (1970).

That whether a message is deceptive depends on the 
particular context in which it is delivered is also clear in 
the area of labor relations. In NLRB v. Gissel Packing 
Co., 395 U.S. 575, 619 (1969), the question whether an 
employer’s statements were misleading or coercive and, as 
a result an unfair labor practice, turned not on the literal 
language of the speech but “ on the question: “ [W]hat did 
the speaker intend and the listener understand ?”  In Gissel, 
this Court reasoned that:

“ . . . any balancing [of the employer’s right of free 
speech against the employees’ right to associate] must

35 They became false, however, if allowed to remain in front of 
property that has been sold, a practice prevalent in Willington 
prior to the enactment of the ordinance. Joint Appendix, p. 38a. 
Signs often remained up for weeks after houses were sold. Joint 
Appendix, p. 34a.



16

take into account the economic dependence of the em­
ployees on their employers, and the necessary tendency 
of the former, because of that relationship, to pick up 
intended implications that might be more readily dis­
missed by a more disinterested ear.” Id. at 617.

“ [T]he understood impact” of “ for sale” signs can only 
be viewed in the context of the racial tensions in suburban 
communities, the various uses for which real estate brokers 
employ “ for sale” signs, and the actual reactions of the 
Willingboro residents to the practices of the real estate 
industry.36 Within this context, “ for sale” signs convey not 
merely a notice of available housing, but a threat to white 
homeowners which preys on their racial fears, induces 
panic selling, fosters blockbusting and invites resegrega­
tion.

C. “For Sale” and “Sold” Signs Are Thrust Upon 
a Captive Audience.

As destructive as the message conveyed by the “ for sale” 
signs is, the continual bombardment of the message on the 
public is impossible to avoid.37 Given the community’s 
physical layout, a drive through any residential section of 
Willingboro would subject a person to a “ forest” of signs.

This Court has recognized that “ restrictions have been 
upheld . . . when the degree of captivity makes it im­
practical for the . .  . viewer . . .  to avoid exposure,” Erznos- 
nik v. City of Jacksonville, 422 U.S. 205, 209 (1976). Mr. 
Justice Douglas stated, “ [w]hile petitioner clearly has a 
right to express his views to those who wish to listen, he 
has no right to force his message upon an audience in­

38 See supra, Point I.
37 As the Court of Appeals observed, Willingboro dwellings were 

built in a line, as is typical of Levitt developments, with each house 
placed the same distance from the street on lots having 60-70 foot 
street footage.



17

capable of declining to receive it,” Lehman v. City of 
Shaker Heights, 418 U.S. 298, 307 (1974) (Mr. Justice 
Douglas, concurring).

The Willingboro ordinance in no way restricts the place­
ment of “ for sale” advertisements in newspapers; it does 
not prevent word of mouth or other dissemination. It only 
restricts display signs. As Mr. Justice Brandeis stated for 
a unanimous court in Packer Cory. v. Utah, 285 U.S. 105, 
110 (1932):

“ . . .  [Tjhere is a difference which justifies the classifica­
tion between display advertising and that in periodicals 
or newspapers . . . Advertisements of this sort are 
constantly before the eyes of observers on the streets 
. . . without the exercise of choice or violation on their 
part . . .  In the case of newspapers and magazines, 
there must be some seeking by one who is to see and 
read the advertisement. The radio can be turned off, 
but not so the billboard or . . . streetcar placard.”

And, just like those for whom a public transit system is the 
necessary mode of transportation, the residents of suburban 
Willingboro use the streets, “ as a matter of necessity, not 
of choice.” Public Utilities Comm’n. v. Pollock, 343 U.S. 
451, 468 (1952) (Mr. Justice Douglas, dissenting), cited 
with approval in Lehman v. City of Shaker Heights, supra, 
418 U.S. at 302.

Regulation of billboards on streets is not unprecedented. 
A  state statute may permit highway billboards to advertise 
businesses located in the neighborhood, but not elsewhere. 
Markham Advertising Co. v. State, 73 Wash. 2d 405, 439 
P.2d 248, appeal dism., 393 U.S. 316 (1969). The Highway 
Beautification Act of 1965, 23 USC § 131, 23 U.S.C.A. § 131, 
authorizes states to adopt regulations which may signif­
icantly curtail use of such signs. If concern for aesthetics 
warrants regulation of placard advertisements, the national



18

goal of open housing and prohibition of blockbusting de­
mand no less. Exposure to “ for sale” and “ sold” signs is 
of a qualitatively different nature than the exposure to the 
offending jacket in Cohen v. California, 403 U.S. 15, 21 
(1969), where the public could “ effectively avoid further 
bombardment of their sensibilities simply by averting their 
eyes.” The ordinance’s restriction of “ for sale” signs is a 
justifiable method of preventing the use of the signs’ 
deliberate “ [visual] assault” on the public as a tool in 
panic selling.38

CONCLUSION

For the foregoing reasons, amicus curiae urges the Court 
to affirm the judgment of the appeals court.

Respectfully submitted,

Jack Greenberg 
Charles S tephen- R alston 
Melvyn R. L eventhal 
B ill L ann Lee 
L inda S. Greene 
Beth J. L iep

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Amicus Curiae, 
NAACP Legal Defense and 

Educational Fund, Inc.

_ 88 Bosenfeld v. New Jersey, 408 TJ.S. 901, 906 (1972) (Mr. Jus­
tice Powell, dissenting), quoted with approval in Erznoznik v. City 
of Jacksonville, supra, 422 TJ.S. at 210 n. 6.



A P P E N D I X



la

APPENDIX A
State and Local Anti-Panic Selling Provisions

Before and since passage § 804(e) of Title V III of the 
Civil Rights Act of 1968, 42 U.S.C. § 3604(e), states and 
localities have enacted a variety of measures to counter 
blockbusting or panic selling by attacking different aspects 
of the process. Title V III’s approach of banning, inter alia, 
representations regarding the entry into the neighborhood 
of persons of a particular race or color made for profit, in 
fact, is based on laws in effect in Ohio and Maryland.1 With 
respect to such laws, several states expressly prohibit in­
direct as well as direct reference to neighborhood transi­
tion,2 some specify the kind of representations prohibited,3 
and some do not limit representations only to those made 
“ for profit.” 4 Some states and localities provide compen-

1112 Cong. Rec. 18177 (Rep. Bingham), see e.g., Md. Ann. Code 
Art. 56, § 230A (1968); Ohio Rev. Code Ann. §4112.02 (Supp. 
1970); Minn. Stat. Ann. § 363.03(2) (4) (Supp. 1971); Chicago 
Beal Estate Board v. City of Chicago, 36 111. 2d 530, 533-534, 224 
N.E. 2d 793, 797 (1967).

2 See, e.g., Mich. Stat. Ann. § 26.1300 (203) (1970).
3 See supra, n. 1. Representative Bingham’s original amend­

ment to H.R. 14765 specifically prohibited the following represen­
tatives: “lowering of real estate values in the area concerned,” 
“ deterioration in the character of the area concerned,” “an increase 
in criminal or anti-social behavior in the area concerned,” and “a 
decline in the quality of the schools or other public facilities serv­
ing the area.” See 112 Cong. Rec. 18179-18180.

4 See, e.g., 111. Am. Stat. ch. 38, § 70-51 (b )-(c ) (Smith-Hurd 
Supp. 1971); Md. Ann. Code art. 56, § 230A (Supp. 1970); Ohio 
Rev. Code Ann. § 4112.02 (H) (9) (1970); Wis. Stat. Ann. 
§101.60(2m) (Supp. 1971); Annapolis, Md. City Code §8-3(a) 
(5) (1970) ; Buffalo, N.J., Ordinance § 350 (1970) ; Detroit, Mich., 
Code § 39-1-13.1 (1970); Evanston, 111, Code § 25-%-6 (1970); 
Green Bay, Wis., Code of Gen. Ordinances ch. 32.05 (1968); Okla­
homa City, Okla. Ordinance 11,848 (1969); Teaneck, N.J. Ordi­
nance 1274 (1966).



2a

Appendix A

satory relief such as damages,5 while others specify in­
junctive relief,6 criminal sanction,7 or license revokation.8 
Other statutes or ordinances prohibit door-to-door solicita­
tion made without the consent of the homeowner9 or sus­
pend solicitation for a period where blockbusting is 
threatened.10 Other provisions prohibit incitement, har- 
rassment, intimidation, threats or other conduct that in­
duces panic selling.11

“Local ordinances have been passed to eliminate one of 
the blockbuster’s major weapons by regulating the size 
and location of ‘for sale’ signs so as to limit their capacity 
to induce panic.” 12 Some localities limit the time a ‘for

5 See, e.g., N.Y. Exee. Law § 297 (McKinney Supp. 1970).
6 See, e.g., Kan. Stat. Ann. § 44-1022 (Supp. 1971); N.Y. Exee. 

Law § 297(6) (McKinney Supp. 1970); Alexandria, Va, Code 
§ 17A-4 (1969) ;  Green Bay, Wise., Code of Gen. Ordinances eh. 
32.05 (1968).

7 See, e.g., Md. Ann. Code at art. 56, § 230A (1968) ; Wis. Stat. 
Ann. §101.60(6) (Supp. 1971); Mich. Stat. Ann. § 26.1300 412 
(1970).

8 See, e.g., Conn. Gen. Stat. Ann. §§ 20-320(11), -328 (1969);
D.C. Code Ann. § 45-1403 (1967) ; N.Y. Exec. Law § 296(3) (Mc­
Kinney Supp. 1969).

9 See, e.g., Summer v. Township of Teaneck, 53 N.J. 548, 251 
A.2d 761 (1969) (Teaneck ordinance requiring permit upheld); 
cf. Breard v. City of Alexandria, 341 U.S. 622 (1951).

10Dayton Ordinances, §§ 115-e (k), & 115-k; New York City 
Admin. Code, eh. 1, Title C, Cl-l.Q et seq.; see Blockbusting A 
Novel Statutory Approach To An Increasingly Serious Problem, 
7 Colum. J. L. & So. Prob. 538 (1971).

11 Buffalo, N.Y., Ordinance ch. VII, art. XVIII, § 351(a) 
(1970); Pa. Real Estate Comm’n Regulations 15.9, 15.10, Septem­
ber 22, 1966; 111. Ann. Stat. ch. 38, § 70-51 (c) (Smith-Hurd Supp. 
1971); Annapolis, Md. Code §8-3 (a) (5) (b) (1970).

12 Comment, Blockbusting, 50 Geo. L. J. 170, 173 (1970) ; see, e.g., 
Detroit, Mich. Ordinance 753-F, reprinted in 7 Race Rel. L. Rptr. 
1256 (1962); Teaneck N.J., Ordinance 1157, reprinted in 7 Race 
Rel. L. Rptr. 1262 (1962).



3a

Appendix A

sale’ or ‘sold’ sign may be posted. Willingboro, for instance, 
before prohibiting signs altogether had a provision reg­
ulating the size, restricting its placement within property 
lines, and requiring that “ [s]uch signs shall be removed 
within five days after the execution of any lease, rental 
agreement or agreement of sale for the premises in ques­
tion by the occupant of the premises and/or the owner 
of the sign.” 13 It was widespread abuse of this ordinance 
by realtors14 that led the Willingboro Township Council to 
enact Ordinance No. 5-197415 which repealed the prior 
ordinance. Prohibition of “ for sale” and “ sold” signs is 
an approach adopted by other local authorities as well.16 
Indeed, trial testimony indicates that Willingboro “con­
tacted National Neighbors and found out that there were 
some other communities throughout the country that have 
done this type of ordinance,” 17 and then contacted one, 
Shaker Heights, Ohio.18

13 Willingboro, N.J. Ordinance Chap. XVIII, § 17-6.5, reprinted 
in Joint Appendix, p. 14a.

14 See, supra, p. 8, n. 19.
15 Joint Appendix, p. 27a.
16 See, e.g., Barrick Realty Inc. v. City of Gary, 354 F. Supp. 

126 (N.D. Ind. 1973), affirmed, 491 F.2d 161 (7th Cir. 1974) 
(Gary, Ind. Ordinance No. 4685 upheld) ; Chicago, 111. Mun. Code, 
Ch. 198.7B and Ch. 113-28; Milwaukee Code of Ord. §16.3 (14.1) 
(limited to licensed real estate brokers and salsemen).

17 Joint Appendix, p. 184a.
18 Id. at 184a-185a.



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